Teleforum

Apache Stronghold v. United States is an ongoing case involving religious land use. On February 18, 2021, a federal judge allowed the government's plans to swap a portion of Tonto National Forest for land owned by Resolution Copper. Inside the National Forest land is Oak Flat, a Native American sacred site.Apache Stronghold, a nonprofit organization that defends these sites, and the Becket Fund for Religious Liberty are challenging the judge's preliminary injunction at the Ninth Circuit Court of Appeals.First Amendment expert Stephanie Barclay, co-author of the recent Harvard Law Review article "Rethinking Protections for Indigenous Sacred Sites," and A.J. Ferate, formerly Vice President of Regulatory Affairs for the Oklahoma Independent Petroleum Association, will give an update on this case and discuss legal implications.Featuring: Prof. Stephanie Barclay, Associate Professor of Law and Director, Religious Liberty Initiative, University of Notre Dame Law SchoolAnthony J. Ferate, Of Counsel, Spencer Fane LLP

In this case, Sierra Club, Inc. submitted a FOIA request to the U.S. Fish and Wildlife Service requesting biological impact reports that were made in consultation with the Environmental Protection Agency. The EPA had planned to construct “cooling water intake structures” and in compliance with the Clean Water Act consulted with U.S. Fish and Wildlife on the question of biological impact. Citing FOIA Exemption 5, the deliberative process privilege, Fish and Wildlife withheld the draft reports. Sierra Club sued and both the District Court and Ninth Circuit sided with Sierra Club, holding to varying degrees that the deliberative process privilege did not cover the requested reports. In Justice Barrett’s first majority opinion and by a 7-2 margin, the Supreme Court overruled the Ninth Circuit’s decision finding that the deliberative process exemption covers “predecisional and deliberative” documents and so protects the draft biological impact reports from FOIA disclosure. Featuring: -- Nancie Marzulla, Partne

In Pereida v. Wilkinson, the Supreme Court held 5-3 that an individual seeking relief from a lawful removal order under the Immigration and Nationality Act (INA) must “shoulder [the] heavy burden” of proving every element of eligibility for relief including the absence of a conviction for a crime of moral turpitude. Clemente Avelino Pereida argued on appeal that although he was recently convicted of a crime, he remained eligible for relief because he refused to disclose the nature of the crime so moral turpitude could not be proven. The Court disagreed with Pereida, siding with the Eight Circuit and finding Pereida must show the crime was not one of moral turpitude in order to be eligible for relief under the INA.Featuring:-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

In Lange v. California, defendant Arthur Lange challenges the application of the exigent circumstances exception to the warrant requirement of the Fourth Amendment in California state court arguing exigent circumstances should apply only in genuine emergencies – not where the police are in hot pursuit following a misdemeanor traffic violation. Lange argues the evidence supporting his DUI arrest and conviction should be thrown out because it surfaced only after the police followed Lange into his garage following his commission of misdemeanor traffic offenses. California upheld Lange’s conviction favoring a case by case approach to applying the exigent circumstances exception to pursuit following probable cause of a misdemeanor. Other states have adopted a blanket ban on misdemeanors providing the exigent circumstances necessary to justify a warrantless search.In granting certiorari, the Supreme Court will address the split among the states and consider whether pursuit following probable cause of

In Brnovich v. Democratic National Committee and the consolidated case of Arizona Republican Party v. Democratic National Committee, the Supreme Court will address issues raised under Section 2 of the Voting Rights Act and the Fifteenth Amendment. Under Section 2, which restates and expands the protections of the Fifteenth Amendment, "no voting qualification or prerequisite to voting or standard, practice or procedure” may be imposed in a manner that is intentionally discriminatory or has a disparate impact on a racial or language minority. In this case, the DNC challenged two of Arizona’s voting procedures: discarding out-of-precinct provisional votes where the ballot itself was filled out properly and disallowing third parties to collect and deliver completed vote-by-mail ballots. The DNC argued the provisional ballot rule has a disparate impact on African American, Native American, and Hispanic citizens and the ban on third party delivery was enacted with discriminatory intent. On appeal, the Arizona Repu

On March 3, 2021, the Supreme Court will hear oral arguments in Carr v. Saul. This case involves important constitutional questions of appointments and officer status. Specifically, the case deals with the question of whether a claimant seeking disability benefits under the Social Security Act forfeits an Appointments Clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.Profs. Jennifer Mascott and Richard Pierce, distinguished experts in the field of administrative law, join us to discuss the case, review oral arguments, and discuss implications, and offer their thoughts on related constitutional questions.Featuring: Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason UniversityProf. Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School ---This call is open to the public and press. Dial 888-752-3232 to be connected.

The U.S. Supreme Court will hear oral argument in United States v. Arthrex Inc. on March 1, 2021. This case is an important one for the office of patent judges. At issue in the case is whether, for purposes of the Appointments Clause, administrative patent judges of the U.S. Patent and Trademark Office (USPTO) are principal officers, requiring presidential appointment and Senate confirmation, or are "inferior officers." Also at issue is whether if they are principal officers, the lower court properly cured any Appointments Clause defects in the current statutory scheme.Profs. Greg Dolin and Dmitry Karshtedt join us review oral arguments, discuss the case, and offer their divergent views on the merits in a discussion moderated by Prof. Kristen Osenga. Featuring:Prof. Gregory Dolin, Associate Professor of Law and Co-Director, Center for Medicine and Law, University of Baltimore School of LawProf. Dmitry Karshtedt, Associate Professor of Law, The George Washington Law SchoolModerator: Prof. Kristen Osenga, Austi

On February 25, 2021, The Federalist Society's Practice Groups and In-House Counsel Working Group hosted a lively panel on Law and Corporate Social Responsibility. With the start of the 2021 proxy season, the period when many public companies hold their annual shareholder meetings and consider proxy proposals, it seems timely to revisit the discussion around Milton Friedman’s essay, “The Social Responsibility of Business Is to Increase Its Profits.” Fifty years ago he published his view that the responsibility of business is “to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game” and it has been debated by economists, scholars, shareholders, and CEOs since that time.Featuring:-- Hon. Myron T. Steele, Partner, Potter Anderson Corroon; former Chief Justice, Delaware Supreme Court-- Hon. Elad L. Roisman, Commissioner and formerly Acting Chairman, U.S. Securities and Exchange Commission-- Moderator: Hon. Paul S. Atkins, CEO, Patomak Global

The Institute for Justice (IJ) has filed a petition for certiorari in Serrano v. CPB, asking the Court: “When the government seizes a vehicle for civil forfeiture, does due process require a prompt post-seizure hearing to test the legality of the seizure and continued detention of the vehicle pending the final forfeiture trial?” As Gerardo Serrano was driving his Ford F-250 truck across the U.S.-Mexico border, CBP agents searched the vehicle and found five .380 caliber bullets and one .380 caliber magazine in the center console. Gerardo explained that he had a valid concealed carry permit in his home state of Kentucky; he had simply forgotten the bullets and magazine were in the truck. CBP seized Gerardo’s truck for civil forfeiture on the ground that he had attempted to export “munitions of war.” Gerardo asked CBP for a hearing before a judge, but CBP held his truck for over two years without a hearing.Our expert panelists disagree on many of the principal issues of the case: Was Mr. Serrano entitled to a he

The Federalist Society's Corporations, Securities & Antitrust Practice Group and Regulatory Transparency Project are pleased to host this fireside discussion between Mr. Bilal Sayyed, most-recently Director of the Federal Trade Commission's Office of Policy Planning, and Svetlana Gans, Vice President and Associate General Counsel at NCTA and former chief of staff at the FTC. They will discuss the current state of the FTC, challenges facing the agency, and the path ahead in the new administration. This discussion is open to the public and press, and Zoom registration is required at the link above.Featuring:-- Bilal Sayyed, Senior Adjunct Fellow, TechFreedom; formerly Director, Federal Trade Commission Office of Policy Planning-- Moderator: Svetlana Gans, Vice President & Associate General Counsel, NCTA

The Federalist Society hosts Prof. Beth Van Schaack and Mr. John Bellinger for a discussion about the current treatment of Turkic Muslim civilians by the People's Republic of China ("PRC"), under a policy that the PRC describes as a counter-terrorism campaign but that others have described as a genocide. Prof. Van Schaack is the Acting Director of the International Human Rights Clinic at Stanford Law School, and previously served as the Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice of the U.S. Department of State. Mr. Bellinger is a partner at Arnold & Porter, and previously served as Legal Adviser to the Department of State, as Senior Associate Counsel to the President, and as Legal Adviser to the National Security Council.Featuring: -- John B. Bellinger, III, Partner, Arnold & Porter-- Prof. Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights, Stanford Law School

On February 8, 1996, President Bill Clinton signed into law the landmark Telecommunications Act of 1996, the most significant revision of the Communications Act since its enactment in 1934. In the 1996 Act’s preamble, Congress declared the statute’s purpose “to promote competition and reduce regulation.” And the conference report accompanying the law stated it was intended “to provide for a pro-competitive, deregulatory national policy framework.” At the signing ceremony, President Clinton’s rhetoric was soaring: “With the stroke of a pen, our laws will catch up with our future.”Now, a quarter century after the Telecom Act’s passage, we can celebrate the 25th anniversary and acknowledge the achievement, while – with the benefit of hindsight – also taking a critical look at what the 1996 Act actually accomplished and whether it needs updating. This program will address these fundamental questions: (1) what did the 1996 Act get right; (2) what did it get wrong; and (3) should it now be updated or substantially

The Federalist Society's Intellectual Property Practice Group is pleased to host this panel discussion on the elimination of the injunction presumption by the U.S. Supreme Court's decision in eBay v. MercExchange (2006), and what impact this decision has had on the patent system, especially with respect to the concepts of “efficient infringement,” patent-owner leverage (or lack thereof) and the innovation economy. Our distinguished panelists will offer diverse perspectives on these issues and more.Featuring: -- Mr. David Jones, Executive Director, High Tech Inventors Alliance-- Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit -- Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University; Senior Scholar, Hudson Institute-- Moderator: Mr. Robert J. Rando, Partner, Taylor English Duma LLP; Executive Committee Member, Federalist Society Intellectual Property Practice Group

During the last weeks of the Trump Administration’s Treasury Department, the Financial Crimes Enforcement Network (FinCen) unveiled a rule that received more comments than any other proposal in FinCen’s history. Over seven thousand commentors weighed in, despite only a 15-day comment-period stretching over the Christmas and New Year’s Day holidays. The proposed rule would impose certain Bank Secrecy Act reporting requirements on unhosted virtual currency wallets. (An unhosted wallet is the digital equivalent of a physical wallet, whereas a hosted wallet is the equivalent of a brokerage account.) Opponents argued that the proposed rule violated privacy rights, was ineffective, inhibited innovation, and violated the Administrative Procedures Act. Proponents asserted the proposed rule and its abbreviated review period were necessary to limit money laundering, and other illicit activity.This disagreement represented a shift in positioning between the virtual currency industry and the regulators. Previously, m

This teleforum will address the upcoming Eleventh Circuit en banc argument in United States v. Brown, which concerns whether a juror may be removed from a deliberating jury because he prayed for and believed he received the Holy Spirit's guidance in considering the evidence. A district court found that a juror who did so could be removed from service and an Eleventh Circuit panel affirmed the decision. Judge William Pryor wrote a 64-page dissent, in which he argued that the decision demonstrated "a failure to reflect on the nature of prayer" and how it features in religious believers' "everyday way of thinking, speaking, and deciding."The Eleventh Circuit then granted en banc review in September 2020. Oral arguments are scheduled for February 23, 2021. Lea Patterson of First Liberty Institute joins us to discuss the case and its implications.Featuring:Lea Patterson, Counsel, First Liberty Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website.

This teleforum will discuss in detail the various provisions contained in the Protecting the Right to Organize (PRO) Act The Act, which increases worker rights, passed the House in last Congress and is expected to be reconsidered in the new Congress. This teleforum will discuss the Act and potential strategies to be utilized by the Biden administration to obtain passage of the PRO Act.Featuring:-- Maury Baskin, Shareholder and Co-Chair, Workplace Policy Institute, Littler Mendelson P.C.-- Moderator: Dean Reuter, General Counsel, Vice President & Director of the Practice Groups, Federalist Society for Law and Public Policy

The Fourteenth Amendment is now over 150 years old. The Supreme Court has long rejected interpreting that Amendment with its original meaning. But what would an originalist interpretation of the Amendment look like? Would it be unworkable for modern problems?In this teleforum, Profs. Steven Calabresi and Ilan Wurman will discuss Wurman's new book The Second Founding: An Introduction to the Fourteenth Amendment, in which he argues not only that we should reclaim the original meaning of the Fourteenth Amendment, but that doing so would lead to many desirable and surprising results. Professor Wurman argues that the privileges or immunities clause is not, like many originalists claim, a fundamental rights provision, but is instead an antidiscrimination provision. The implications for incorporation, economic liberty, school desegregation, and gay rights may surprise you. Featuring:Prof. Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law, Northwestern University Pritzker School of LawProf. Ilan Wu

ABA Model Rule of Professional Conduct 8.4(g) holds it misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” in connection with the practice of law. Scholars have criticized the Rule as chilling speech on matters of public concern and unlawful viewpoint discrimination; several state attorneys general concluded the rule is unconstitutional. Nevertheless, Pennsylvania adopted a modified version of Rule 8.4(g), including “words or conduct” within its ambit. In Greenberg v. Haggerty (E.D. Pa. 2020), an attorney represented by the Hamilton Lincoln Law Institute obtained a preliminary injunction against Pennsylvania’s enforcement of the rule. Pennsylvania officials have appealed to the Third Circuit. HLLI’s Ted Frank will discuss Rule 8.4(g) and its consequences for speech, the Greenberg decision and appeal, and the prospects for future litigation. Featuring: Ted Frank, Director of Litigation and Senior

On January 19, 2021, the U.S. Supreme Court heard oral arguments in Federal Communications Commission v. Prometheus Radio Project, an important case involving issues of media ownership. Specifically, the Court will decide whether the U.S. Court of Appeals for the Third Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.A distinguished panel joined The Federalist Society on January 25, 2021 to discuss the case, the arguments, and the implications. Featuring: Ms. Jane E. Mago, Consultant in Media Policy and Law; former General Counsel, Federal Communications CommissionHon. Michael O'Rielly, Visiting Fellow, Hudson Institute; former Commissioner, Federal Communications CommissionMr. Christopher J. Wright, Partner, Harris, Wiltshire & Grannis; former General Counsel, Federal Communications CommissionModerator: Mr. Lawrence J. Spiwak, President, Ph

After living in relative obscurity since its passage in 1996, the Congressional Review Act caught the nation’s attention in 2017 when a Republican-led Congress and newly-elected President Trump used it to overturn 14 “midnight” regulations issued at the end of the Obama administration. Some prominent Democratic lawmakers opposed the CRA’s framework as well as its individual uses in 2017. Will roles be reversed in 2021 regarding Trump administration "midnight" regulations? Can they be completely reversed? The teleforum will review the mechanics and overriding purposes of the CRA. The technical elements include the law’s expedited congressional procedures, the types of actions covered, time frames for disapprovals, number of votes needed to overturn an action, and the consequences of disapproval. Featuring:Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal FoundationModerator: Prof. Susan E. Dudley